论证人反对被迫自我归罪的特权与证人豁免制度

反对被迫自我归罪的特权是证人的一项重要权利。为保证诉讼发现真实的目标,许多国家在规定了反对被迫自我归罪的特权的同时还确立了证人豁免制度,以最大限度地减少证人反对被迫自我归罪特权的消极影响,保证在证人援用该特权时能够通过赋予其豁免而获取重要的证据。我国应当在立法中确立反对被迫自我归罪的特权和证人豁免制度。     

Stereotypes influence beliefs about transfer and sentencing of juvenile offenders

Despite sharp drops in juvenile crime since the mid-1980s, punitive policies regarding juveniles who commit serious offenses still exist. We assessed beliefs about two such practices: transferring offenders from the juvenile justice to the criminal justice system, and subjecting them to sentences of life without parole (LWOP). We examined whether stereotypes about juvenile offenders – the extent to which people believe they are dispositionally violent superpredators versus economically and socially impoverished wayward youth – influence support for these policies. We measured 321 participants’ beliefs about the causes of juvenile crime and juveniles’ potential for recidivism and rehabilitation. Using vignette methodology and actual case facts, we described a 13-, 17-, or 21-year-old offender who murdered a stranger or abusive parent, and asked whether he should be transferred to criminal court and sentenced to LWOP. As endorsement of the superpredator stereotype increased, so did support for these practices. Offenders who murdered an abusive parent were shown more leniency. Older offenders were generally treated harsher, except by people with strong superpredator stereotypes who, on the issue of LWOP appropriateness, did not distinguish among juveniles of different ages. Findings suggest that stereotypes can influence judgments in cases involving juveniles and indirectly affect policy-making about juvenile offending.     

Symptoms of corruption and union denial

Labor Racketeering is often the result of collusion between employers and employee representatives in which in exchange for something of value the employee representative ignores his obligation to union members. Given the limited investigative resources of unions, proving the receipt of a bribe is most often beyond their ability. However, the artifacts of racketeering such as inexplicable substandard contracts or lax contract enforcement remain evident. The harm to the members remains the same. As a consequence, in disciplining union employees, unions should sanction them for involvement in the creation of these artifacts as if bribes were proven. Charles A. Carberry is the Chief Investigator for the Independent Review Board (IRB), the body that pursuant to the Civil RICO settlement between the International Brotherhood of Teamsters (IBT) and the government investigates corruption and supervisors resulting disciplinary actions against union members. The views expressed herein are Mr. Carberry’s and not necessarily those of the IRB.     

美国宪法不自证己罪特权的适用范围考察——施梅伯案及其以后

在美国,不自证己罪特权的适用状况始终与司法权的运作密切相关。通过1966年的施梅伯案,联邦最高法院历史性地将特权的适用范围限定在证述或表达,从而明确认可一系列针对人身的强制取证行为。该标准一直沿用至今,但也在强制提交文件、强制取证过程中的附带陈述、强制精神病鉴定和制定法申报义务等案件中遭遇挑战,再起波澜。实践表明,美国联邦最高法院对不自证己罪特权的司法适用有所保留,更多只是将其作为口供任意性的保障。关注不自证己罪特权在美国刑事司法的适用状况,会对我们理解《刑事诉讼法》关于不得强迫任何人证实自己有罪的规定有所启发。     

论“不强迫自证其罪”条款的解释与适用——《刑事诉讼法》解释的策略与技术

修正后的《刑事诉讼法》第50条明确规定"不得强迫任何人证实自己有罪",但是,关于该条款究竟是否赋予了被追诉人沉默权,理论界和实务界产生了认识上的分歧,由此导致"不强迫自证其罪"条款在我国司法实务中的运作前景存在一定的模糊性,其立法效果有待观察。在司法实务中正确适用"不强迫自证其罪"条款,关键是坚持运用正确的法律解释方法。     

构建我国证人反对被迫自证其罪特权制度的设想

我国证人出庭作证制度极不完善,尤其是证人权利义务设置失衡,证人的应有权利缺乏保障,导致证人出庭作证难,拒证现象严重。反对被迫自证其罪特权是证人的一项必不可少的权利,它已得到世界众多国家以及联合国公约的认可。构建我国证人反对被迫自证其罪特权制度对于改善我国证人作证的现状,切实保障证人合法权益是非常重要的。     

Arms control: Focus on denial and deception

Conclusion Arms control continues to be a key element of U.S. national security policy. Yet, to be a constructive part of our national strategy, stringent arms control verification is required. Of late, the government has moved from agreements incorporating effective monitoring methods to multilateral, feel-good agreements that are very difficult, if not impossible, to monitor. Since the United States is not going to violate agreements, we could be placed at a long-term strategic disadvantage.     

公司法人人格否认制度及其适用

公司法人人格制度在具体运作中,出现了公司股东滥用公司独立人格和股东有限责任的现象,本文针对公司人格被滥用的现状,对公司人格否认制度确立的必要性、公司法人人格否认法理及其适用作了初步分析,以平衡公司与股东的权利和股东与债权人的风险,达到健全和完善我国市场经济的立法作用。     

Basic concepts for the evaluation of technology transfer benefits

This paper considers the problems of the evaluation of the benefits that may be derived from technology transfer. When intangeable benefits are considered the evaluation process becomes more costly and often less reliable. A model is developed that should assist in the evaluation of externalities and other intangeable benefits.     

在亮点与盲点之间——论“不证实自己有罪”的规范对比与冲突

"不得强迫任何人证实自己有罪"是我国《刑事诉讼法》第二次修正首次引入的旨在抑制刑讯逼供、促进人权保障的法律规范,具有宣示性的正面进步意义。然而这一立法亮点降生在我国特定的司法体制体中,无论是法律语言的内涵还是法律原则与规则的创制方面,与国际法、外国法视野中的"不自证其罪"尚存在诸多差异;同时,规范所凸显的价值与国内程序法、实体法、证据法形成的紧张关系,将不断拷问未来法律实施的效能。制度中的盲点只有借助于立法完善、法律解释、法律推理等冲突解决机制的有效介入与解构,亮点才能闪烁出理性的光茫。     

Clinical evaluation of juvenile delinquents: who gets court referred?

This study examines which alleged delinquents in a large urban juvenile court are selected for referral to the court's psychiatric clinic. A number of demographic factors, probation officer impressions, index charges, and past delinquency record variables were examined for all minor delinquency cases referred in a six-month period and for a random selection of nonreferred cases. In general, referral was associated with lower socioeconomic status (SES), and with a variety of probation impressions of child and family dysfunction. Little relation to index charge or past record was found. The authors interpret these results as showing that probation referrals appear to be made more on the basis of high risk than on the basis of favorable prognosis for treatment.     

The Reporting Procedure for Police Officers who have Used Serious Force Under Dutch Law and the Privilege Against Forced Self-incrimination

Recently the controversy about the police use of force has increased within The Netherlands. Simultaneously it has become clear that courts have provided divergent judgments in these cases; some have sentenced and others have acquitted police officers. Whereas victims of the police use of force increasingly ask for the prosecution of these officials, others demand to change the reporting procedure in favor of the officer’s legal position. This research explains how the reporting procedure for these cases is construed under Dutch law – particularly regarding the serious use of force – seeing that such a contribution currently lacks in (inter)national legal literature. Besides, it examines to what extent the abovementioned procedure violates the officer’s right against forced self-incrimination under the ECHR. This research concludes, in absence of a court ruling, that the procedure is incompatible with the ECHR when the evidence that follows from the officers’ duty to notify is admissible in criminal procedures.     

Reducing juvenile recidivism with cognitive training and a cell phone follow-up: an evaluation of the realvictory program

The purpose of this research was to evaluate the effects of a cognitive training and cell phone intervention on the recidivism of 70 juvenile offenders. Median days to rearrest were 106 for the control group, 191 for the class-only group, and 278 for the class plus cell phone group. Using rearrest as the survival criterion, the survival ratios of the class-only and class plus cell phone groups were 2.64 and 2.94 times longer than the control group, respectively. After controlling for gender, prior arrests, and risk score, the Poisson regression indicated that the class-only and class plus cell phone groups were 51% lower in total arrests than the control group. These results suggest that cognitive training supplemented with a cell phone coach is an effective and cost-efficient intervention for reducing recidivism.     

The effect of transfer mechanism from juvenile court on conviction on a target offense in criminal court

The question of whether juvenile offenders should be handled in criminal court has been addressed by a number of studies. However, few have examined the effectiveness of the type of transfer mechanism and how it relates to protecting the public. Whether the mechanism used to transfer juvenile offenders to criminal court has any effect on the likelihood of being convicted of a target offense criminal court is examined here. It was found that the juveniles sampled in this study had a greater chance of being convicted on their target offense in criminal court if they were sent there via judicial waiver than if they were excluded from juvenile court jurisdiction by statute.     

How to make perpetrators in denial disclose more information about their crimes

This study examined interview techniques for eliciting admissions from perpetrators of a crime. Two techniques derived from the Strategic Use of Evidence (SUE) framework (SUE-Confrontation and SUE-Confrontation/Explain) were compared to an Early Disclosure of Evidence technique. Participants (N?=?75) performed a mock criminal task divided into three phases before being interviewed. In the SUE conditions, statement-evidence inconsistencies were obtained by strategic interviewing for Phases 1 and 2. For both SUE conditions, the interviewer confronted the suspects with these inconsistencies, emphasising that withholding information undermined their credibility. For the SUE-Confrontation/Explain condition, the suspects were asked to explain each inconsistency. To restore their credibility, the suspects in the SUE conditions were expected to become more forthcoming in Phase 3 (the phase which lacked information). The suspects in the SUE-Confrontation condition (vs. the suspects in the Early Disclosure condition) disclosed more admissions about Phase 3. As predicted, the suspects in the SUE conditions perceived the interviewer to have had comparatively more information about Phase 3. The suspects in the SUE-Confrontation/Explain condition strived to maintain their credibility either by fitting their story to the evidence or by sticking to the initial story. The study shows that the SUE technique is effective for eliciting admissions.     

Dating violence and girls in the juvenile justice system

The purpose of this study is to explore the prevalence and associated behaviors of dating violence among a population of girls in the juvenile justice system. A sample of 590 girls from an urban juvenile justice system completed a questionnaire assessing attitudes and self-efficacy about and occurrence of dating violence. The analysis developed a random effect model to determine a risk profile for dating violence. The strongest predictors of dating violence were (a) initial sexual experience at age 13 or earlier, (b) unwillingness of initial sexual experience, (c) drug use, and (d) low self-efficacy about preventing dating violence. The high prevalence of dating violence and associated behaviors among participants suggests the importance of implementing primary prevention programs to assist preteen girls in delaying initial sexual intercourse and in learning techniques to prevent dating violence.